For many reasons, including the backlog in the court system due to the pandemic, there is a growing interest in settling medical malpractice cases through alternative dispute resolution (ADR), particularly mediation. So far, it has proven to be effective.
What is mediation?
Mediation is a kind of alternative dispute resolution (ADR) that involves the parties in dispute, their attorneys (if they have any) and a neutral third party called a mediator. Mediators facilitate a conversation and negotiation between the parties to reach an agreement that works for both parties.
Why does mediation work in medical malpractice cases?
When the circumstances of the case are a good fit for mediation, this method of ADR can bring a medical malpractice case to a close much faster. Unlike arbitration, another form of ADR, the mediator’s role is to support and help the parties identify their interests and suggest possible solutions to reach a positive outcome without going through a lengthy court process. The mediator does not make decisions for the parties.
The parties in the medical malpractice case can still bring their attorneys, who can negotiate on their behalf and take charge of the process if their clients want them to do so. Yet, it differs from the court system in that it is a negotiation between the parties instead of an adversarial proceeding.
Is mediation binding?
Mediation is not binding unless the parties agree and decide to make their agreement binding. In other words, while it is not binding, the parties have control over the case’s outcome. If they agree to a solution, they can file their agreement with the court and a judge can sign it, after which it can become a court order or contract.
Most attorneys settle medical malpractice cases before trial, making mediation an attractive option for clients because it allows them to solve their issues in a non-adversarial, less time-consuming and more cost-effective way than going to court.